Justice Oliver Wendell Holmes is often said to have been the greatest American judge. He was conservative in the older sense of the term, faithful to precedent and history, but he welcomed adaptations of the law to new realities. His thought and character stand as a rebuke to today's activists of the Right. Some reflections on the Constitution, originalism and the Supreme Court.

Friday, August 30, 2013

You might not think Justice Holmes had an opinion about Section 4 of the Voting Rights Act of 1965, but Justice Clarence Thomas summoned up his ghost, and his authority, in Shelby County, Alabama v. Holder, decided just last June. Justice Thomas in his separate opinion claimed that Section 4 was unconstitutional, despite the elaborate finding by Congress that it was still needed to enforce the commands of the Fifteenth Amendment, which prohibits states from discriminating by race in voting. Justice Thomas cited Holmes's opinion in Giles v. Harris (1903), maybe not Holmes best moment but the opinion certainly should give no comfort to Thomas or his brethren in the majority. Holmes wrote an opinion in that case explaining that the Court could not issue an injunction to halt the outrageous racial discrimination going on in Alabama, without prior authority from Congress.... Not exactly the argument you should make when striking down a Congressional mandate to halt outrageous race discrimination by race in Alabama. Sigh. Justice Thomas should know better; he was photographed, looking rather unhappy it is true, during his confirmation hearing holding a copy of my book Honorable Justice: The Life of Oliver Wendell Holmes.

Speaking of Shelby County, Justice Ruth Bader Ginsburg in her powerful dissent had by far the better argument, and might more reasonably have cited Holmes. She pointed out that the majority was ignoring the Court's own precedents in order to announce a new doctrine, a rule that the states must all be treated the same by Congress. Aside from the lack of any basis for this rule in precedent or in the Constitution, as she also pointed out, the majority had neglected to address the first question in the case, whether Shelby County's history of continued racial discrimination justified the Attorney General in demanding to see their latest efforts in election law. In its eagerness to announce a doctrine, the majority of the Court neglected their sole constitutional duty, which was to decide the case before it. Holmes was the great practitioner of the common law, and has always been highly regarded for his willingness to defer to the reasonable enactments of Congress, and his modest view of the Court's duty simply to follow precedent, by deciding like cases alike. Justice Ginsburg shows herself the inheritor of his deep sense of the justices' constitutional duty, and of the best of the common law tradition.